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May 5, 2011
Avoiding A Confrontation, Take 5: My Take On The Supreme Court's Impending Opinion In Bullcoming v. New Mexico
I haven't posted on it yet, so today I thought that I would post an entry about the Supreme Court's impending opinion in Bullcoming v. New Mexico and my take on the case. The issue presented to the Supreme Court is
Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.
As readers of this blog know, this is an issue of some interest to me (see, e.g., my posts here, here, and here). So, what did the Supreme Court of Nevada hold in Bullcoming v. New Mexico, 226 P.3d 1 (N.M. 2010), and what is the United States Supreme Court likely to hold?
Well, let's start at the start. In its landmark opinion in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. Subsequently, in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), police arrested Luis Melendez-Diaz, took what was apparently cocaine from him, and charged him with distributing cocaine and trafficking in cocaine in an amount between 14 and 28 grams. At trial, the police introduced into evidence
three "certificates of analysis" showing the results of the forensic analysis performed on the seized substances. The certificates reported the weight of the seized bags and stated that the bags “[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine."...The certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health.
The analysts who conducted the forensic analysis, however, did not testify, and Melendez-Diaz claimed that their failure to testify violated his rights under the Confrontation Clause. The trial court disagreed, Melendez-Diaz was convicted, and his appeal eventually reached the Supreme Court. As I noted in a post about the case, the Supreme Court deemed these certificates "testimonial" and thus found that their admission violated the Confrontation Clause because the analysts did not testify.
Now, let's consider Bullcoming. In Bullcoming, Donald Bullcoming was arrested for DWI, and an officer thereafter had a nurse draw Bullcoming's blood and then sent the blood sample out for testing. The machine used to analyze the defendant's blood was a gas chromatograph machine. After the test, the machine printed out a result -- that Bullcoming's blood alcohol content was 0.21gms/100ml -- and an analyst recorded this information in a 2 page report that was admitted at trial as Exhibit 1. The analyst did not testify at Bullcoming's trial, but the nurse who drew the blood and the officer who observed the blood draw and sent out the blood sample did testify.
Moreover, Gerasimos Razatos, an analyst for the New Mexico Department of Health, Scientific Laboratory Division, Toxicology Bureau (SLD), who helps in overseeing the breath and blood alcohol programs throughout the state, testified as well. According to Razatos, the gas chromatograph machine does all of the work and prints out a result, and any human being could transcribe that result as the non-testifying analyst did in creating the subject report.
After Bullcoming was convicted, he appealed, claiming that Exhibit 1 was testimonial and that its admission violated the Confrontation Clause because the analyst preparing it did not testify at trial. The Supreme Court of New Mexico generally agreed, concluding that "Exhibit 1 in the present case, like the certificates in Melendez-Diaz, are testimonial despite the fact that they are unsworn." That said, the court then concluded that
the Confrontation Clause permits the admission of testimonial statements "so long as the declarant is present at trial to defend or explain it."...Although the analyst who prepared Exhibit 1 was not present at trial, the evidence revealed that he simply transcribed the results generated by the gas chromatograph machine. He was not required to interpret the results, exercise independent judgment, or employ any particular methodology in transcribing the results from the gas chromatograph machine to the laboratory report....Thus, the analyst who prepared Exhibit 1 was a mere scrivener, and Defendant's true "accuser" was the gas chromatograph machine which detected the presence of alcohol in Defendant's blood, assessed Defendant's BAC, and generated a computer print-out listing its results.
In this case, Razatos, an SLD analyst, was qualified as an expert witness with respect to the gas chromatograph machine and the SLD's laboratory procedures. Razatos provided live, in-court testimony and, thus, was available for cross-examination regarding the operation of the gas chromatograph machine, the results of Defendant's BAC test, and the SLD's established laboratory procedures. Additionally, Razatos could be questioned about whether the operation of the gas chromatograph machine required specialized skill that the operator did not possess, involved risks of operation that might influence the test results, and required the exercise of judgment or discretion, either in the performance of the test or the interpretation of the results. Because Razatos was a competent witness who provided live, in-court testimony, we conclude that the admission of Exhibit 1 did not violate the Confrontation Clause.
The Supreme Court of New Mexico then "[r]eiterate[d] that the admissibility of Exhibit 1 under the Confrontation Clause was dependent on the live, in-court testimony of a qualified analyst." And, "because Razatos did testify, Defendant's right of confrontation was preserved and the admissibility of the exhibit depend[ed] on the application of [New Mexico's] rules of evidence." The court then found that the applicable rule was New Mexico Rule of Evidence 11-703, which provides that
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
According to the court, "'While experts may rely on hearsay under Rule 703, the hearsay itself is not admissible.'...Thus, Exhibit 1 properly was admitted under Rule 11-703 if it contain[ed] facts or data of the type reasonably relied upon by experts in the field and its probative value substantially outweighs its prejudicial effect."
The New Mexico Supremes then concluded that Exhibit 1 was properly admitted because
the trial court reasonably could have found that the probative value of Exhibit 1 in assisting the jury to evaluate Razatos's testimony substantially outweighed its prejudicial effect. Accordingly, Razatos properly relied on the gas chromatograph machine results in his testimony and the trial court did not abuse its discretion in admitting Exhibit 1 into evidence.
So, was the court right? Could the trial court have found that the probative value of Exhibit 1 substantially outweighed its prejudicial effect? I have argued against this conclusion before (see here), but I think that Julie Seaman, a professor at the Emory University School of Law, describes the problem with this conclusion perfectly in her terrific article, Triangulating Testimonial Hearsay: The Constitutional Boundaries of Expert Opinion Testimony, 96 Geo. L.J. 827 (2008).
According to the Supreme Court of New Mexico, Exhibit 1 was not admitted for its truth but only to assist the jury in evaluating Razatos' testimony. And this is not surprising because, as Professor Seaman notes,
The most common basis for court holdings rejecting a Confrontation Clause challenge to the introduction of expert opinion is that the statements relied on by the experts in forming their opinions were not offered for their truth, but only as a basis for the expert's opinion. Because the Supreme Court in Crawford clearly stated that the decision applied only to testimonial statements offered for their truth, a finding of a non-hearsay purpose allows these courts to hold that their admission does not amount to a constitutional violation.
A representative example of such non-hearsay reasoning is this statement from a case involving a California gang prosecution:
Crawford limits the introduction of hearsay directly against a defendant but does not affect the type of evidence relied upon by an expert in forming his opinion. In our case, the prosecution did not offer the contents of the police reports as hearsay evidence of the truth of the matters asserted in the reports. The reports were mentioned only as a basis for [the expert's] opinion that [the defendant] was a Sureno gang member. [The defendant] had the opportunity to challenge the testimony by demonstrating the underlying information was incorrect or unreliable. He did not. There was no denial of his confrontation rights.
If, as the court says, the appropriate manner for the defendant to challenge the expert's opinion would be to demonstrate that the underlying information is "incorrect or unreliable," then it is plain that it is in fact being offered for its truth. If it were not offered for its truth, its reliability would be irrelevant. The court's own description of the jury instruction given in the case supports the conclusion that the testimonial statements were indeed offered for their truth. The jury in Valerio “was advised that the expert's opinion was only as good as the facts and reasons on which it was based, and that the jury should consider the proof of such facts in determining the value of the expert's opinion.”
Furthermore, if the opinion is only as good as the facts on which it is based, and if those facts consist of testimonial hearsay statements that were not subject to cross-examination, then it is difficult to imagine how the defendant is expected to "demonstrate the underlying information was incorrect or unreliable." According to Crawford, the only constitutionally sanctioned manner in which the reliability of testimonial hearsay may be tested is by cross-examination.
She then later concludes that
In the post-Crawford cases that rely on this non-hearsay rationale to permit expert witnesses to repeat testimonial statements at trial, courts reason that the statements are offered not for their truth, but only "to show the bases of [the expert's] opinions." Such reasoning is widespread. Of the more than one hundred cases applying Crawford to expert reliance on testimonial hearsay, over thirty rely on this particular non-hearsay rationale to hold that there is no constitutional violation. However, as discussed above, it is not logically possible for a jury to use the hearsay statements to assess the weight of the expert's opinion other than by considering their truth. Unless the jury is thought to evaluate the expert's opinion simply based on the quantity of facts or data on which it relies, or perhaps on the type of data relied upon, it cannot but consider the substance of the hearsay statements that form the basis of the opinion. After all, should the jury find that the hearsay statements are false, it is difficult to imagine how the statements might support the expert's opinion; only if they are true can they reasonably be said to offer any weight to the opinion. (emphasis added).
I thoroughly agree with this analysis as do the attorneys for Bullcoming, who included it in their reply brief to the Supreme Court (which, along with all of the relevant documents in the case, can be found at SCOTUSBlog).
Indeed, I think that Bullcoming is an easy case given that the prosecution clearly introduced the absent analyst's report to prove the truth of the matter asserted in it. Given this, the case is just like Melendez-Diaz, and the Court should reach the same conclusion. And I feel safe in my belief because Confrontation Clause expert Richard Friedman has argued the same on The Confrontation Blog. As he notes, the tougher case is when an expert witness relies upon an absent analyst's report as the basis for opinion testimony but the report is not admitted into evidence. But, as he also notes, "that case is not the one before the Court [in Bullcoming], in which the prosecution clearly introduced a full report by the absent analyst. So, will the Court "simply resolve the case before it," or will it reach broader conclusions regarding the entire class of cases identified by Professor Seaman? On that question, we will just have to wait and see.
May 5, 2011 | Permalink
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